Republic of the Philippines

NATIONAL LABOR RELATIONS COMMISSION

National Capital Region
Quezon City

NLRC-NCR CASE NO. 09-11853-14

Complainant,

-versus-

LOCKHEED DETECTIVE & WATCHMAN AGENCY, INC.,

Respondent,
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MOTION TO AMEND COMPLAINT

COMPLAINANT unto this Honorable Labor Arbitration Office most respectfully

submits this position paper and avers the following to wit:

PREFATORY STATEMENT

The Respondent is LOCKHEED DETECTIVE & WATCHMAN AGENCY, INC., a

business establishment owned by Mr. Esteban Uy, with business address at EU State
Tower, 30 Quezon Ave. Quezon City, where the said establishment and
representative could be served with summons and other legal processes of this
Honorable Office.

STATEMENT OF FACTS

The Complainant was an employee, hired as a Security Guard by the

Respondent, Lockheed Detective & Watchman Agency, Inc. on September 1993.
From then on, he was assigned by the Respondent to its various clients within Metro
Manila area. The business undertaking of the said Respondent is to deploy Security
Guards to its various clients all over the Philippines with known sister companies
involved in the same line of business like ADVANCE FORCES SECURITY &
INVESTIGATION SERVICES, INC, where in fact, the Complainant was deployed by
the Respondent sometime in 1998 for more or less five (5) to six (6) months (a copy
of the issued Identification Card is attached hereto as Annex “A”), the Complainant
is just one of its thousands of employee security guards. A copy of the
Identification Card issued by the Respondent to the Complainant is hereto attached
as Annex “B” as proof of the latter’s employment.

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 The Complainant worked for six (6) days a week but sometimes have to
render seven (7) days a week. He normally worked for 8 hours per day but there
were times he has to render twelve (12) hours depending on their assigned post.

The monthly wage rage of the Complainant is more or less Php 13,400
inclusive of COLA, Uniform allowance, Incentive Pay, Night Differential (if any),
Additional Time, as reflected in his latest payslips herein attached as Annex “C”.

Sometime in 2011, the Complainant was assigned in the Bureau of Internal

Revenue (BIR) NOB Security Detachment in Agham Road, Diliman, Quezon City as
shown by herein attached Annex “D” and as reflected in the payslips Annex “C”.
23, 2014, a mandatory conciliation and mediation conferences were held but
no settlement was reached, although the Respondent through its representative/
counsel offered by way of settlement an amount of more or less Php 100,000.
Further a mandatory conference on October 8 and 15, 2014 were held for a
possibility of amicable settlement and determination of other matters. However, on
the last day of the hearing, October 15, 2014, the counsel/ representative for the
Respondent offered the Complainant a Detail Duty Order / Special Order for
Assignment at Quezon City Hall (as reflected in the minutes of that last hearing
herein attached as Annex “E”) but the latter did not accept the belated offer. The
Complainant gave the indication that due to strained relations and the insinuation
that he is already old to be given another position / duty refused to be reinstated.
As a consequence, this Honorable Office issued an order directing the parties to
submit their respective position paper.

Hence, this position paper.

ISSUES

1. WHETHER OR NOT THE COMPLAINANT WAS ILLEGALLY DISMISSED.

2. WHETHER OR NOT COMPLAINANT IS ENTITLED TO SEPARATION PAY OF

1 (ONE) MONTH SALARY FOR EVERY YEAR OF SERVICE, 13 TH MONTH PAY
FOR THE YEAR 2014, SERVICE INCENTIVE LEAVE PAY, HOLIDAY PAY,
OVERTIME/ NIGHT DIFFERENTIAL PAY, UNIFORM ALLOWANCE,
BACKWAGES AND OTHER BENEFITS MANDATED BY LAW.

3. WHETHER OR NOT, THE RESPONDENT IS LIABLE TO THE COMPLAINANT

FOR EXEMPLARY DAMAGES AND MORAL DAMAGES.

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 4. WHETHER OR NOT COMPLAINANT IS ENTILED TO RECOVER ATTORNEY’S
FEES FROM RESPONDENT.

DISCUSSIONS

FIRST ISSUE: (ILLEGAL DISMISSAL)

From the foregoing facts, it is clear that the dismissal of the complainant was
illegal thus he should be paid of his separation pay as provided by law. The
Respondent was put on a “Floating Status” for a period exceeding six (6) months.
The "floating status" of such an employee should last only for a reasonable time. As
in the case of Agro Commercial Security Services, Agency, Inc. vs NLRC (G.R. Nos.
82823-24, July 31, 1989) where in this case, “respondent labor arbiter correctly held
that when the "floating status" of said employees lasts for more than six (6) months,
they may be considered to have been illegally dismissed from the service. Thus, they
are entitled to the corresponding benefits for their separation.”

Further in Sentinel Security Agency, Inc. vs. NLRC, et.al. ( G.R. 122468, Sept.
3, 1998), states that, “A floating status requires the dire exigency of the employer’s
bona fide suspension of operation, business or undertaking. In security services, this
happens when the clients that do not renew their contracts with a security agency
are more than those that do and the new ones that the agency gets. However, in
the case at bar, the Agency was awarded a new contract by the Client. There was
no surplus of security guards over available assignments. If there were, it was
because the Agency hired new security guards. Thus, there was no suspension of
operation, business or undertaking, bona fide or not, that would have justified
placing the complainants off-detail and making them wait for a period of six months.
If indeed they were merely transferred, there would have been no need to make
them wait for six months. The only logical conclusion from the foregoing discussion is
that the Agency illegally dismissed the complainants.”

In all indications the Respondent has no reason not to give another duty or
position to the Complainant for a period exceeding six (6) months considering it is
one of the biggest Security Agencies in the country with known other sister security
agencies as mentioned in the foregoing. The Respondent in fact continues to hire
new Security Guards and have posted them all over their clients here in Metro Manila
and the rest of the country. The Respondent has so many clients in the country, the
belated offer of the Respondent of a new Detail/ Duty assignment to the
Complainant bears this out and as per knowledge of the latter that assignment being

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offered (at the Quezon City Hall) was already existing a long time ago. Thus,
constructive dismissal is glaring in this instant case.

SECOND ISSUE: (SEPARATION PAY OF 1 (ONE) MONTH SALARY FOR EVERY YEAR
OF SERVICE, 13TH MONTH PAY FOR THE YEAR 2014, SERVICE INCENTIVE LEAVE
PAY, HOLIDAY PAY, OVERTIME/ NIGHT DIFFERENTIAL PAY, UNIFORM ALLOWANCE,
BACKWAGES, AND OTHER BENEFITS MANDATED BY LAW.)

As to the entitlement of 13 th Month pay, service incentive leave pay, holiday

pay premiums, overtime/ night differential pay, uniform allowance and other benefits
mandated by law, the Complainant believes that he is entitled to the same just like
all other regular employees and as guaranteed by the Labor Code of the Philippines.
The complainant by reason of the illegal dismissal was deprived of his 13th Month
pay, service incentive leave pay, holiday pay premiums, overtime/ night differential
pay, uniform allowance and other benefits.

The Complainant does not pray for reinstatement; in fact, opted not to be
reinstated. Thus, following the case of Sentinel Security Agency, Inc. vs. NLRC, et.al.
(G.R. 122468, Sept. 3, 1998) when “however, reinstatement is no longer feasible in
this case. The Agency cannot reassign them to the Client, as the former has
recruited new security guards; the complainants, on the other hand, refuse to accept
other assignments. Verily, complainants do not pray for reinstatement; in fact, they
refused to be reinstated. Such refusal is indicative of strained relations. Thus,
separation pay is awarded in lieu of reinstatement.”

The Complainant is entitled to separation pay as affirmed by the Supreme

Court in the case of Agro Commercial, as well as the case of Sentinel Security
Agency, stated above, “thus, when the labor arbiter rendered his decision, he
considered those who have been out of work or "floating status" for a period
exceeding six (6) months to have been terminated from the service without just
cause thus entitling them to the corresponding benefits for such separation.” Thus,
pursuant to Article 283 of the Labor Code the Complainant is entitled to his
separation pay equivalent to one (1) month pay for every year of service.

The Complainant by reason of his illegal dismissal is entitled to

backwages, the Supreme Court pronounced in Philippine Industrial Security Agency
Corp. vs. Dapiton (377 Phil. 951, 966 (1999), “that the backwages had to be paid by
the employer as part of the price or penalty he had to pay for illegally dismissing his
employee. It was to be computed from the time of the employee’s illegal dismissal
up to the time of his reinstatement.”

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THIRD ISSUE: ( EXEMPLARY DAMAGES AND MORAL DAMAGES)

The herein Complainant is entitled to moral damages because the dismissal of

the complainant was attended by bad faith of constitutive of an act oppressive to
labor. In the case of Lim vs. National Labor Relations Commission ( G.R. No. 79907,
March 16, 1989), the Supreme Court upheld the award of moral as well as exemplary
damages in view of the bad faith attendant to the treatment of the employee.

In the instant case, there is no other plausible explanation for the acts (or its
conspicuous absence) of the Respondent of the manner wherein the Complainant
was deprived of his employment except bad faith. One glaring proof is its belated
offer (or an afterthought to circumvent the law) to the Complainant of a new Detail/
Duty only when he has already commenced filing of this complaint. Another was
when in the course of the Conciliation- Mediation process (as stated above) the
Respondent through its counsel/ representative offered the Complainant a meager
sum in order for him to finally quit and be considered separated from service. These
are clearly abusive conduct of the Respondent and an attempt to exploit the socio-
economic standing of its employees/ workers. This is oppressive thus warrants
Exemplary Damages for the Complainant by way of example or correction for the
public good.

Furthermore, as the Complainant suffered mental anguish, serious anxiety,

besmirched reputation, and social humiliation by reason of the Respondent’s
unreasonable acts and in particular because the former has to face financial
uncertainty caused by this Legal Action a claim for Moral Damages therefore is in
order.

FOURTH ISSUE: (RESPONDENT IS LIABLE FOR ATTORNEY’S FEES

Under Article 2208 of the New Civil Code, attorney's fees can be recovered in
actions for the recovery of wages of laborers and actions for indemnity under
employer's liability laws. Attorney's fees are also recoverable when the defendant's
act or omission has compelled the Plaintiff to incur expenses to protect his interest.

In the instant case, respondent’s refusal to give complainant another duty/

post in an unreasonable period of time and where in fact there were a lot of their
existing clients where the latter could have been given new assignment/ duty/ post
which is tainted with bad faith has compelled the complainant to hire the services of

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the counsels or attorneys for a fee (from consultations, notarization etc.) in order to
protect his right and interest.

PRAYER

1. of Php 50, 000 as exemplary damages.

2. Respondent pay the Attorney’s fees equivalent to 10% of the

judgment award.

Other reliefs just and equitable under the premises are also prayed for.

RESPECTFULLY SUBMITTED.

Quezon City, November 3, 2014.

VERIFICATION and CERTIFICATE OF NON- FORUM SHOPPING

I, JUNTINO S. ALAIR, of legal age and Filipino, after having been duly sworn
to in accordance with law, depose and state THAT:

I am the complainant in the above-entitled case; I have caused the preparation of

the foregoing position paper and I have read the same and the contents of which are
true and correct of my own knowledge and/or on the basis of authentic documents.

Furthermore, in compliance with the Rules of Court, I hereby certify that I have not
commenced any other action or proceedings involving the same issues in the
Supreme Court, the Court of Appeals, or different divisions thereof, or any other
tribunal or agency; and that to the best of my knowledge, no such action or
proceeding is pending in the Supreme Court, the Court of Appeals, or any other
tribunal or agency. If I learn that a similar action or proceeding has been filed or is
pending before the Supreme Court, the Court of Appeals, or any other tribunal or
agency, I shall notify the court, tribunal or agency within five (5) days from notice.

IN WITNESS WHEREOF, I hereunto affix my signature this November 3, 2014

JUNTINO S. ALAIR
Affiant

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SUBSCRIBED AND SWORN to before me this day of _____November, 2014 the
affiant has personally appeared before me and exhibiting to me his ____________
issued at______ on ________.

NOTARY PUBLIC

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ANNEX “A”

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ANNEX “B”

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ANNEX “C”

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ANNEX “D”

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ANNEX “E”

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